Section 377’s Colonial Roots

Section 377 of the Penal Code, 1860, a British colonial-era law, criminalises homosexuality in Bangladesh. It provides that ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal’ may be punished with imprisonment for life or for a term of up to ten years imprisonment together with a fine. While the provision does not explicitly deal with homosexuality, focusing on the wording ‘voluntarily’ is significant here, as it reveals that Section 377, which comes with the heading ‘unnatural offence’, separates it from other offences such as rape that deal with non-consensual sexual intercourse.

As is obvious, the goal of Section 377 is not to deal with sexual violence but to criminalise sexual conduct that does not fit within the heterosexual penile-vaginal model of sexual intimacy. Indeed, this has been the case, especially with respect to male-to-male sex, since the time the British Empire came up with this heteronormative legal regulation in 1860. In Bangladesh, Section 377 has contributed to building an environment that subjects people to harassment, arrest threats, and extortion simply because of their sexual orientation. This, in turn, raises the significance of decriminalisation of homosexuality as a pressing human rights issue for Bangladesh, with serious implications for equality, dignity and privacy of LGBT+ persons.

Criminalisation as Discrimination

One route to decriminalisation is to argue that the criminalisation of homosexuality is discriminatory. Bangladesh has ratified, among others, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 2 of ICESCR prohibits discrimination, and the ICESCR committee have clarified in its General Comment No. 20 (2009) that this extends to sexual orientation.

The Constitution of Bangladesh does not have an open-ended list of grounds, unlike the ICCPR and ICESCR, and so this route may be closed off. However, the Constitution does include ‘sex’ as a ground. Thus, another way to interpret the provision is the approach followed in Toonen v. Australia. There, despite the ICCPR not containing any provision that explicitly addresses sexual orientation or gender identity, the Human Rights Committee interpreted the reference to “sex” in Articles 2(1) and 26 of the ICCPR as including sexual orientation for the purposes of protection against discrimination. Although the Committee did not provide any explanation for such interpretations, discrimination based on sexual orientation has been considered sex-based discrimination because it is grounded in stereotypes associated with sex, such as the assumptions that ‘real men’ and ‘real women’ are always heterosexual.

Clashing Rights

Interconnected with this is the question of the extent to which these interpretations of human rights may be rejected or qualified on the grounds of religion or culture, thereby curtailing sexual and gender freedom, as has already arisen in the context of Bangladesh. Islam is the constitutionally recognised state religion in Bangladesh.

The Human Rights Committee has made it clear that the existence of a state religion or the prevalence of a particular religious belief among the majority population does not justify restricting any rights under the ICCPR. Any restrictions must be in accordance with the principles of universality and non-discrimination. Hence, any appeal to popular morality must not receive serious consideration when it regulates, controls, or prohibits one from exercising their human right to sexual autonomy, including the ability to decide with whom they want to engage in sexual intimacy. Indeed, the Human Rights Committee had already called on Bangladesh to decriminalise consensual same-sex relationships.

If Bangladesh wants to comply with its international human rights obligations towards its queer community, decriminalisation of homosexuality is not merely about ticking off a checklist; it is a fundamental prerequisite. The fulfilment of this requirement would mark the beginning of a form of queer liberation in Bangladesh that is free from the shackles of unjust (colonial) laws.

In addition to criminalising LGBTQIA+ consensual sexual acts, the new law criminalises persons entering into same-sex marriages, and the organisers, officiators, and witnesses of such marriages with imprisonment ranging from ten to twenty years (Article 391). It similarly criminalises forming LGBTQIA+ societies/associations (Article 392). Unlike many countries that have always had anti-LGBTQIA+ laws, Niger never expressly criminalised LGBTQIA+ activities/relationships until now.

Despite the lack of a criminalising provision in Niger’s 2003 Penal Code, homosexuality was nevertheless stigmatised, and law enforcement agencies sometimes invoked Articles 275 and 276 (public indecency), or 277 and 278 (indecent assault), to incarcerate LGBTQIA+ persons. Only Article 282 addressed homosexuality, limited to committing an indecent or unnatural act with a minor of the same sex.

One might speculate that this law is a byproduct of the military coup in July 2023 and the usurpation of power by General Abdourahamane Tchiani. But that is not the case. The former president, Mohamed Bazoum, had also sought the implementation of anti-LGBTQIA+ laws, even suggesting the death penalty.

While criminalising lesbian, gay, bisexual, and transgender acts violates many human rights like the right to privacy (Article 17, International Covenant on Civil and Political Rights [‘ICCPR’]), freedom of expression (Article 19), the right to life (Article 6), etc., criminalising intersex persons, because of their status as such, also violates the right against torture and cruel, inhuman, and degrading treatment (Article 7).

Intersex persons have inherent sexual characteristics/genes that do not conform to the sex or gender binary. These characteristics are not artificially induced. Rather, these exist from birth. If the law criminalises intersex individuals, they are forced to undergo medical interventions to align with binary stereotypes. But Article 390 also criminalises those who undertake medical transitions to change their sex at birth. While this might extend only to a binary man/woman transitioning to the opposite binary gender, the language of the provision is precarious and should be urgently addressed.

Intersex persons already face tremendous violence, discrimination in all spheres of life, denial of equal opportunities, and even intersex infanticide. Niger’s law exacerbates their miseries.

Forced medical interventions on intersex persons amount to torture or cruel, inhuman, and degrading treatment, prohibited by Articles 2 and 16 of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘UNCAT’). They can cause severe irreversible consequences, including permanent infertility, pain, incontinence, loss of sexual sensation, and chronic depression. Forced medical interventions without free, full, and informed consent of intersex persons, particularly children, also violate the right to the highest attainable standard of physical and mental health (Article 12 of the 1966 International Covenant on Economic, Social, and Cultural Rights).

They also violate the 1989 UN Convention on the Rights of the Child (‘CRC’). The CRC encourages States to abolish traditional practices prejudicial to the health of children  (Article 24[3]), like female and intersex genital mutilation. They are seldom in the best interests of the child (Article 3), and restrict enjoyment of good health (Article 24(1)). Even if some medical intervention is urgently required for the child’s health, medical intervention undertaken only to conform to gender stereotypes is wrongful. Forcing a child to undergo genital surgeries not only prejudices their health, but also vitiates their right to preserve their own identity (Article 8), which is fundamental to human dignity. This law transgresses Niger’s duty to safeguard children from violence, injury, neglect, negligent treatment, and abuse (Article 19).

Hence, Niger’s new Penal Code violates the human rights of intersex persons, particularly children. The Human Rights Committee (ICCPR) and the UN Human Rights Council have previously urged Niger to decriminalise consensual sexual intercourse between same-sex adults and enact comprehensive anti-discrimination legislation prohibiting discrimination based on sexual orientation and gender identity. Niger rejected their recommendations.

While many countries have criminalised non-heterosexual orientations, criminalising gender identity and voluntary sex transitions is a new low. International human rights bodies must continue to call for reform in Niger. Until reform, the survival of intersex persons in Niger is extremely endangered.

The consequences for queer children are devastating. Children seldom have meaningful agency to resist the demands of their caregivers, churches, or communities, even when those demands inflict profound psychological harm. Now, not even a well-intentioned state like Colorado can shield vulnerable queer youth, many of whom will be compelled to absorb the normative messaging of conversion therapy. The ideology central to conversion therapy teaches children that they are broken and must be fixed—an injury that will scar them well into adulthood. Yet, the Court reduces the practice to little more than a benign conversation: “all Ms. Chiles does is speak with clients.” This conclusion is possible only by ignoring the real harms children experience during and after a therapist’s “speech.”

Chiles is the latest in a stream of decisions demonstrating the Court’s special sympathy for perceived victims of LGBTQ+ inclusion. In 2021’s Fulton v. City of Philadelphia, the Court ruled for a Catholic foster care agency that precluded the placement of children in homes with same-sex parents without hearing from any LGBTQ+ parent applicants who may have been turned away. The Court reasoned that Philadelphia’s anti-discrimination policies created a risk that the city might treat religious adherents less favorably than secular parties at some future time. The opinion never acknowledges how this outcome facilitates—indeed, requires—the humiliating exclusion of queer people from serving as foster parents, or harms children in need of loving foster homes that queer families can provide.

More recently, in 2025’s Mahmoud v. Taylor, the Court sided with parents challenging a school district’s policy denying parents opt-outs from LGBTQ-inclusive curricula. The majority opinion minimized the threat that opt-out rights pose to public education more generally, and it was silent about the dignitary, emotional, and stigmatic harms that queer children will experience when their peers exit a classroom before any educational acknowledgment of queer themes, characters, or stories. Instead, the opinion fixates on the religious burdens conservative parents will suffer when their children are exposed to the reality that LGBTQ+ people exist. According to the Court, these LGBTQ+ inclusive lessons impart intolerable normative lessons that gravely threaten parents’ religious beliefs. First, it is difficult to discern any limiting principle in Mahmoud; does public education not exist, at least in part, to transmit norms of civility and respect for others in a pluralistic society? Second, the Court fails to even consider the normative messages queer children will internalise when their identities are erased from the classroom.

In these and other recent decisions, like 2018’s Masterpiece Cakeshop granting a Christian baker the First Amendment right to deny services for a same-sex wedding, the Court appears myopically sensitive to the harms that may befall conservative religious adherents within a legal landscape that suddenly treats queer people as human beings worthy of inclusion and respect. In an ominous sign, the Court recently agreed to hear a case next term, St. Mary Catholic Parish v. Roy, offering yet another opportunity to weigh religious liberty claims against LGBTQ-inclusive policies. The question in St. Mary’s Catholic Parish centers on whether Colorado may constitutionally exclude a Catholic preschool from its universal preschool program because the preschool’s admission policy excludes LGBTQ children and children with LGBTQ parents. Given the Court’s recent pattern, it is easy to predict the likely outcome: a law designed to prevent LGBTQ exclusion will be twisted into a law that excludes religious adherents.

In the last decade, the Court has remade the Constitution in line with right-wing policy preferences. Today, harms to religious adherents’ commitment to LGBTQ exclusion garner maximum constitutional protection, while the resulting exclusionary harms to LGBTQ people receive none. Simply put, the contemporary Court’s interpretation of the First Amendment privileges religious intolerance over equality for all.

Within this restrictive socio-legal milieu, what role does queering marriage law in India play? The concept of queering refers to the practice of challenging identity categories and disciplinary boundaries in order to unsettle hegemonic and oppressive notions of ‘normal’ towards greater inclusivity. Although the marriage equality case, argued before the Indian Supreme Court in 2023, did not challenge the heteronormative institution of marriage itself, simply seeking recognition of queer marriage can be seen as an initial step in a long process of ‘queering’ by challenging the framework of marriage law.

The 2023 Supreme Court hearing thus challenged existing legal regimes in India in multiple ways. Among other arguments, petitioners challenged the secular SMA as discriminatory against non-heterosexual couples; challenged the notification provision within the SMA which requires couples to provide written notice to the district Marriage Officer, which is then displayed publicly, soliciting any legal objections to the marriage. This provision acts as a barrier even to heterosexual couples marrying against their family’s wishes. It also challenged the law of adoption as discriminatory for including provisions that effectively bar queer couples from adopting and raised questions about the primacy of biological family which mediates access to healthcare, inheritance, insurance and financial autonomy, adversely affecting queer folk who face violence and discrimination within biological families. Though the Supreme Court judgment declined to read gender neutral rights into the existing legal framework, it was constrained to provide its reasoning for doing so. And it is this reasoning that is particularly illuminating, illustrating the radical nature of the challenge that queer marriage poses to existing legal structures in India.

The judgment dwelt on questions of whether marriage was indeed a fundamental right, whether legislative intent would be served by including queer marriage under the SMA, whether the interest of the child would be served if queer parents could adopt and, centrally, whether the judiciary was the appropriate forum for seeking marriage equality. However, one of its key lines of reasoning rested on existing gendered provisions within the SMA and the danger of losing those hard-won protections for women. This raised the question: in the context of a queer marriage, who would these provisions apply to?

The court’s reasoning thus inadvertently highlighted the centrality of gender unequal roles within marriage. For example, the age of consent is 18 years for women and 21 for men, upholding an asymmetry in life experience and entrenching gendered roles. Further, while the court was rightly hesitant to alter gendered protections – such as gendered provisions for alimony and regarding domestic violence – these issues demonstrate the radical nature of the challenge marriage equality poses to marriage laws. Taking these issues seriously, would force law to grapple with questions of financial, mental and physical abuse outside the neat categories of male (abuser) and female (abused).

The judgment noted that several other statutes’ operation would be affected by making marriage gender equal. Though it did not explicitly point this out, these statutes include the recently enacted ‘Love Jihad’ laws. Additionally, the particular use of Habeas Corpus along with statutory rape provisions to criminalize young men and ‘recover’ young women from unions of their choice against their families’ wishes would also be affected. Thus, making marriage gender neutral would result in several legal avenues for policing intimacy being lost to familial networks of control.

In the course of the Marriage Equality judgment, the Supreme Court also upheld the right of trans people to marry, as secured through the Arunkumar judgment in the Madras High Court in 2019, under the Hindu Marriage Act. As several commentators have argued, this was possible because of several preceding judgments, including the NALSA judgment and the passage of the Transgender Persons (Protection of Rights) Act, 2019. Arguably, the space for securing rights is hard-won and incremental, through repeated petitioning and legal manoeuvres.

As the messy history of personal law bears out, the law both entrenches systems of power and provides tools and means to challenge them. For instance, Christian women in India secured divorce rights denied to them under the law through the judiciary. Similarly, under Muslim law, women were granted more secure maintenance rights through creative interpretation by the judiciary. The securing of marriage rights for trans people (in apparently heterosexual marriages) can be seen as a similar instance of incremental change in the longer process of queering.

While the judgment did not secure marriage equality, could the process of seeking it itself be seen as a queering that challenges the policing of marriage, its gendered nature and creates ways to democratize family?

On Family and the Law

“Family” is not just a biological or social unit; it is also a legal and juridical one. Indeed, many rights are the privilege of those the law might recognize as one’s family. However, family, as defined under the law in the Indian context, has not been inclusive of queer familial units. For instance, in the Indian subcontinent, transgender and intersex communities have a millennia-old tradition of forming chosen family units and living together. Yet, it wasn’t until the NALSA v. Union of India (2014) judgment that the Supreme Court recognized transgender individuals as full legal citizens of India. In Deepika Singh v. Central Administrative Tribunal and Ors. (2022), Chief Justice Dhananjaya Yeshwant Chandrachud (para. 26) observed:

The predominant understanding of the concept of a “family” both in the law and in society… ignores the fact that many families do not conform to [a heteronormative] expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships.

Now, while the apex Court in Deepika Singh recognized an expansive interpretation of family, the following discussion shows that ground-level realities remain hostile, even lethal, to queer relationships and individuals.

The Zahhad case

Zahhad (a trans man) and Ziya (a trans woman) welcomed their child in 2023; however, when the Kozhikode Corporation issued the birth certificate, Zahhad was mentioned as the “mother (transgender),” while Ziya was mentioned as the “father (transgender).” Rightly dissatisfied with being misgendered, the couple asked the Corporation to issue a revised certificate, but their requests were rejected.

The couple petitioned the Kerala High Court, which opined that Zahhad (a trans man) and Ziya (a trans woman) are allowed to use the term “parents” instead of the gendered words “mother” and “father.” This is a significant step towards a more equal society where LGBTQ+ families are accepted and treated fairly.

The MA case

But if we have a right to love, as the Supreme Court’s Johar judgment established, do we also have a right for that love to be protected from “families” that would illegally detain, torture, and abuse queer family members, preventing them from entering into a consensual relationship with another adult? In India, there have been cases of families forcibly sending LGBTQ+ individuals to conversion therapy, and same-sex couples routinely face threats of honor killings and persecution (indeed, from strangers and relatives alike). This was clear in MA.

In MA v. Superintendent of Police, a 25-year-old woman from Tamil Nadu, referred to as “MA” in the case proceedings, filed a writ of habeas corpus in the Madras High Court to free her 22-year-old partner, who was kidnapped by her biological family after they found out about their queer relationship. Lamenting the behavior of the victim’s parents, especially her mother, the Court ruled this is an instance of illegal detention and a violation of Article 21 of the Constitution, which guarantees personal liberty (para. 9). Further, the judgment held that the concept of family should be understood to transcend marriage or blood to include “chosen families,” which is now (after NALSA) an accepted legal concept in LGBTQ+ jurisprudence.

Conclusion

These two judgments, Zahhad and MA, further solidify constitutional protections offered to LGBTQ+ individuals in India. In India, courts have played a key role in both articulating and protecting the rights of marginalized communities. The cases signify a growing judicial willingness to protect the human rights of queer individuals, whether in their roles as parents or partners, and to expand the constitutional meaning of family beyond the confines of blood, marriage, and gendered societal norms. However, as laws are seldom effective without social acceptance, recognition of queer families in the courtroom must be accompanied by changes in policy and public consciousness.

Newly transformed, emboldened, and empowered, the Court wasted little time in delivering long-sought partisan goals for remaking the U.S. Constitution. Today, gone are concerns about the subordination of sexual minorities that animated the Obergefell decision. Instead, over the last decade, the Court has repeatedly issued rulings favored by White Christian Nationalists—overturning past precedent, manipulating legal doctrine, and creating new rules to blunt civil rights progress and turn the clock back to a more traditional time when liberty and equality were reserved for some but not all. Central to this project of constitutional realignment is the protection and amplification of conservative Christianity. The Court’s contemporary First Amendment jurisprudence reflects this religious solicitude, evident in its dismantling of the remaining wall separating church and state under the Establishment Clause and in its breathtakingly expansive interpretation of individual religious liberty under the Free Exercise Clause. Increasingly pitched religious objections to LGBTQ inclusion in a post-Obergefell world have provided the ideal catalyst for elevating conservative Christians as victims of an over-reaching government and in dire need of constitutional protection.

At the close of its 2024-25 term, the Court issued its decision in Mahmoud v. Taylor, marking perhaps the most significant expansion of religious liberty in the modern era. At issue in Mahmoud was a decision by a public board of education to incorporate LGBTQ-inclusive storybooks as part of its K-5 curriculum. A group of religious parents objected to these materials and sought a mechanism for opting out their children. The board denied the parents’ request, determining that an opt-out mechanism could significantly disrupt the classroom. Notably, these storybooks do not depict same-sex sexual acts, nor do they convey technical or medical information about gender transition; instead, the normative messages embodied by each storybook are tolerance and acceptance. These books are radical only in the sense that they make visible people who have long been invisible, and they encourage treating those people with kindness rather than derision. What is radical, however, is how the Court came to its conclusion that religious parents have a constitutional right to the opt-out they seek.

Under usual free exercise rules, laws and policies posing incidental burdens on religious liberty are almost always permissible because they trigger deferential rationality review. By contrast, laws and policies that are neither religiously neutral nor generally applicable are rarely permissible because they trigger strict judicial review. In Mahmoud, evidence indicated that the board’s decision to incorporate LGBTQ-inclusive curriculum was neutral regarding religion, meaning that its expert educational judgment warrants deference. Nevertheless, Justice Alito’s majority opinion departs from this bifurcated approach by applying strict scrutiny based solely on the gravity of the religious burden imposed by this otherwise religiously neutral policy.

It is unclear whether the Court intends to overrule the governing free exercise framework. The Court punted and declined to do so in a recent case, but perhaps that was a move engineered to avoid criticism while awaiting a more suitable vehicle for a stealth departure. At the very least, Mahmoud opens a new free exercise door by inviting claimants to challenge a litany of religiously neutral acts by merely alleging a significant religious burden.

Even more alarming is the Court’s analysis for why these LGBTQ-inclusive storybooks impose a significant burden on the rights of religious parents. According to the Court, it is precisely because they impart normative lessons about LGBTQ inclusion that they carry “a very real threat of undermining” religious beliefs that some parents hope to instil in their children. As the dissenting Justices explain, the Mahmoud majority effectively creates a constitutional right for religious parental opt-outs to children’s “mere exposure” to LGBTQ people and ideas. While the majority rejects this characterization, its protestations do little to cabin the sweeping exclusionary potential of its reasoning. The majority repeatedly stresses that the storybooks convey normative views on sexual orientation and gender identity. It also raises concerns about how teachers will reinforce those views during instruction. Rather than mere exposure, then, this LGBTQ-inclusive instruction is akin to coercive indoctrination.

Does Mahmoud suggest that the Constitution bestows a free exercise right for parents to opt out their children from any instruction possessing normative qualities to which they religiously object? If so, public education may not survive the individualized control that parents may soon exercise over curriculum—an outcome sure to please White Christian Nationalists opposed to secular culture and institutions. Fostering shared values, such as tolerance and acceptance, has long been a core purpose of public K-12 education, and it is difficult to imagine an educational system in which individuals can exercise a constitutional right to dictate which values may be taught.

Alternatively, perhaps Mahmoud more narrowly suggests that LGBTQ representation and positive LGBTQ portrayals in K-12 curriculum uniquely burden religious liberty, given prevailing conservative religious doctrine. If so, this situates conservative over progressive religious beliefs as paramount, rejecting the religious pluralism that once informed the First Amendment’s religion clauses. It also signifies a bleak new reality in which the interests of—and harms to—LGBTQ persons are of no constitutional concern.

Regardless of specific outcomes, Mahmoud undoubtedly offers a powerful new weapon for the right-wing arsenal in efforts to roll back liberty and equality for LGBTQ people. What a difference a decade has made.

Stylistically, much of the order reads like an edict from an authoritarian state. It decries viewpoints opposed by the administration as “subversive” and “anti-American,” and pledges to instead “instill a patriotic admiration for our incredible Nation and the values for which we stand.” Substantively, it gives key cabinet officials 90 days to present a plan to eliminate federal funding for schools that acknowledge the concept of gender identity in curricula, programs, and staff and faculty employment, that support transgender students who are socially transitioning, and that treat students consistent with their gender identity. (The Trump administration, taking its cues from global right-wing movements opposing a wide range of sexual and reproductive rights, has begun using the term “gender ideology” to describe the widespread and rights-respecting practice of acknowledging a person’s gender identity.)

The order finally instructs the U.S. Attorney General to work with state and local law enforcement officials to take action against those they believe to be sexually exploiting minors, practicing medicine without a license, or unlawfully facilitating a student’s social transition. While this may not appear objectionable – sexual exploitation is a crime and is typically punished as such – past efforts to muzzle supportive teachers and miscategorize gender-affirming care as child abuse strongly suggest that the order will be used in practice to chill the expression of those adults who accept and affirm transgender children for who they are.

The order further disrupts an educational landscape that has become incredibly hostile to the lives and well-being of transgender youth. A flood of anti-transgender legislation has swept the United States since 2020, with hundreds of bills being filed each year in state legislatures and virtually no legislative response at the federal level to codify or reaffirm transgender rights. The vast majority of these have targeted transgender youth, seeking to bar them from receiving gender-affirming care, restrict their access to bathrooms and locker rooms, and prohibit them from participating in athletics along with their peers.

Among the many alarming laws enacted as part of this moral panic are restrictions on the teaching or discussion of sexual orientation or gender identity in schools. As of January 2025, nine U.S. states expressly prohibit instruction on these topics, and eight states require that parents be notified and have the opportunity to opt their child out of such instruction before it occurs. Moreover, five states require school staff to notify parents if they learn that a child is transgender, while two other states require that disclosure if parents ask for the information and seven other states do so before the child can be treated consistently with their gender identity in schools.

The executive order and these state laws exacerbate the isolation, discrimination, and violence that transgender children so widely experience. They discriminate against transgender children on the basis of their sex and gender identity, in violation of equality guarantees. They deprive children and educators of their freedom of expression and access to information, particularly insofar as schools have unnecessarily chilled educators’ speech to avoid running afoul of these laws. And by coercing schools into disrespecting students’ gender identity, they jeopardize those students’ privacy, safety, and right to education.

Just two years ago, the United Nations Human Rights Committee expressed concern about the worrying rise of state laws targeting transgender youth and lack of antidiscrimination protections for LGBT persons in the United States. Instead of taking the Committee’s concerns to heart, the Trump administration has aggressively doubled down on anti-transgender discrimination – and in doing so, has shown a flagrant disregard for the well-established human rights of transgender children and the many educators who support them.